Law Society drops action against Catriona MacLennan

The Law Society advised today that they would be taking no further action against lawyer Catriona MacLennan, who criticised a judge for discharging a man guilty of violence, saying it was an understandable reaction.

A Lawyers Standards Committee has decided to take no further action against a lawyer who said it was inappropriate for a District Court Judge to continue to serve on the bench.

Auckland Barrister, Catriona MacLennan’s statements were the subject of an investigation following her public criticism of Judge John Brandts-Giesen.

Judge Brandts-Giesen discharged a Queenstown man without conviction in a domestic violence case last year. The man had assaulted his wife, a male friend and his daughter.

The judge said, ‘This is a situation that does your wife no credit and does the [male] no credit’ and ‘there would be many people who would have done exactly what you did, even though it may be against the law to do so.’

A member of the public complained about Ms MacLennan’s criticism of the judge, prompting the committee to investigate.

Acting Executive Director of the New Zealand Law Society Mary Ollivier says the Standards Committee considered the explanation Ms MacLennan provided for her comments.

“It accepted that lawyers can express their views on the performance of judges but that those comments must be considered and not cross a line that could cause the public to lose confidence in the role of the judiciary and the role judges play in the administration of justice. The committee did not consider that Ms MacLennan’s comments had crossed that line. Her experience as an advocate for victims of domestic violence and the sentiment in which the comments were made were factors in the decision,” Mrs Ollivier says.

MacLennan wrote about the complaint for Newsroom in a powerful defence of her right to speak out.

“I am pleased the investigation has been ended. It should never have been started.

“I will be writing to Justice Minister Andrew Little to put my concerns before him and ask him to take action. The fact that a Law Society body would fail to follow natural justice and other basic principles of our legal system is deeply concerning.

“I am also alarmed that the Law Society appears to place so little importance on freedom of speech, which is guaranteed to every New Zealander under section 14 of the New Zealand Bill of Rights Act 1990.

“The case highlights the vital role of the media. I could not have fought the investigation without making it public and having the media scrutinising what was happening.

“My view is that the role of lawyers is to stand up for the vulnerable and disadvantaged and to speak out about injustice. My opinion is that the Law Society itself should have spoken publicly to criticise Judge Brandts-Giesen’s remarks and his decision to grant a discharge without conviction.

“Upholding the rule of law and the dignity of the judiciary does not mean unquestioningly supporting the judiciary even when they err.”

Newsroom also has comments from former Supreme Court judge Sir Edmund (Ted) Thomas…

…the decision completely vindicates MacLennan “but it is otherwise a treatise in self-justification”.

“The committee seeks to justify a decision that should never have been made in the first place. The committee advances seven reasons for taking no further action. All those reasons would have been known to, or easily ascertained by, the committee at the time it launched its own complaint.”

Justice Thomas said the committee did not express regret “let alone proffer an apology” for the decision. “Yet it must know that an ‘own-complaint’ can have a devastating impact on the recipient.”

He said the MacLennan comments had been temperate, measured and responsible and the committee had been unduly precious.

“With respect, the committee needs training in the meaning of free speech.”

He planned to write to the Law Society president and council urging a review of the membership and procedures of its standards committee and whether it accorded with natural justice.

“Domestic violence is a serious problem in New Zealand. Ms MacLennan served the public interest in taking the Judge to task. It is the committee that is out of step. This is confirmed by the massive support Ms MacLennan has received from the profession.”

Andrew Geddis (@acgeddis):

Having now seen the Law Society’s National Standards Committee’s (NSC’s) report in full, here’s what I think happened.

Catriona made her remarks about the judge, which (most) everyone now says are OK (including the NSC). But some member of the public didn’t like them – so they complained to the Law Society, alleging the remarks called the justice system and the court into disrepute.

The NSC asked Catriona for a response, so she told it that the complainant did not have the legislatively required personal connection to what she said. The NSC agreed with this, so dismissed the member of the public’s complaint as they had no standing to bring it.

BUT, the NSC then decided to hold an inquiry into Catriona’s remarks on its “own motion” (i.e. off its own bat). Why? If we’re charitable, it wanted to avoid a lawyer escaping a breach of standards finding on what could be described as a technicality.

BUT, should we be charitable? The NSC can only commence an “own motion” investigation regarding “any act, omission, allegation, practice, or other matter that appears to indicate that there may have been misconduct or unsatisfactory conduct on the part of a practitioner.”

Could Catriona’s criticism of the judge in question, even given that it involved saying the judge was not fit to continue sitting, be thought to reach that level of seriousness?

Of course, the NSC stands by its decision, saying that it has a job to help protect the dignity of the judiciary from being undermined by lawyers because judges cannot protect itself (I guess contempt of court isn’t a thing any more?)

It also takes a snide swipe at Catriona, suggesting: “Had [she] provided the NSC with the contents of her written submissions dated 11 April 2018 in response to the NSC’s letter of 7 March 2018, it is likely that the NSC would not have set this matter down for a hearing.”

But given that Catriona’s submissions didn’t really say anything more than “the judge’s comments were manifestly terrible given NZ’s record of domestic violence and so he shouldn’t be a judge”, it’s not clear to me what they told the NSC that it didn’t already know.

SO … overall conclusion? The NSC overreached here, taking on an issue that it really ought to have left alone. Having done so, it’s now scrabbling to justify its initial decision to investigate given that everyone says there’s no way it ever could have punished Catriona.